STATE OF NEW JERSEY VS. MAURICE HIGHLAND (12-04-0584, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3307-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE HIGHLAND,

Defendant-Appellant.
_____________________________

Submitted June 4, 2018 – Decided June 12, 2018

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
12-04-0584.

Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).

Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Justin Blasi, Special
Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

This matter returns to us after a remand to the Law Division

for an evidentiary hearing on defendant Maurice Highland's

petition for post-conviction relief ("PCR"). State v. Highland,
No. A-742-15 (App. Div. Oct. 17, 2016). On remand, the court

conducted a hearing and denied PCR. On appeal, defendant renews

his claim that plea counsel provided incorrect legal advice,

leading to his guilty plea to first-degree robbery. Having

considered the record developed at the evidentiary hearing, we

affirm primarily for the reasons stated in the cogent written

opinion of the PCR judge. We add the following remarks.

We incorporate by reference the facts and procedural history

set forth in our October 17, 2016 sua sponte order. In sum, in

April 2011, defendant was one of four participants in a jewelry

store robbery in Wyckoff. Pertinent to this appeal, one of the

participants was armed with a sledgehammer, which he used to

shatter the display cases. Defendant prevented the occupants of

the store from leaving while two of his accomplices removed jewelry

from the cases.

Although he was charged in a fifteen-count indictment,

including five counts of first-degree robbery as an accomplice,

N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1, defendant pled guilty to one

count of first-degree robbery as an accomplice, and third-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). He was sentenced to

an aggregate fourteen-year prison term, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2. During the plea hearing,

defendant acknowledged he was extended-term eligible because of

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his criminal record. Defendant further acknowledged he was

relinquishing his right to have defense motions decided by the

court, including his motion to dismiss the robbery counts for

insufficient evidence to sustain first-degree charges.

On October 23, 2013, we denied defendant's direct appeal,

which was limited to the adequacy of the factual basis for his

guilty plea, and the sentence imposed. State v. Highland, A-5544-

12 (App. Div. Oct. 23, 2013). On June 5, 2014, the Supreme Court

denied certification. State v. Highland, 217 N.J. 623 (2014).

On June 9, 2015, the judge denied PCR. In our sua sponte

order remanding the matter for a hearing we framed the issue raised

by defendant as follows:

[D]efendant filed a PCR petition asserting
ineffective assistance of counsel because of
his lawyer's alleged failure to explain the
State's burden to prove the sledgehammer was
used in a threatening and menacing manner, not
simply to break the display case. In his
supporting certification, defendant stated:

Before entering the guilty plea in
this case, I spoke with my attorney
about the charges against me. I
emphasized to him that I was never
in possession of the hammer [and]
that it was never my intent that the
hammer be used to cause or threaten
harm to anyone in the store. The
only reason that the hammer was even
brought into the store was to break
the glass.

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 My attorney told me that it did not
matter why the hammer was brought or
how it was intended to be used.
[Counsel advised] that the hammer
itself was a deadly weapon and
therefore the robbery was
considered a first[-]degree crime.
I was never told that [I could
argue] to a jury that the crime was
only a second[-]degree crime if [my]
intent was not to cause harm or
threaten to cause harm.

[alterations in original.]

We, therefore, found defendant had established a prima facie

claim of ineffective assistance of counsel, and a hearing was

necessary "to determine what his plea counsel advised in regard

to the grading of his offense." Specifically, "[i]f defendant's

lawyer told him his or his co-defendants' intended use of the

sledgehammer was irrelevant, such advice was patently incorrect."

See State v. Rolan, 199 N.J. 575, 583 (2009) (recognizing that the

actor's intent determines whether the item used is a "deadly

weapon" when the item has other legitimate uses).

On January 3, 2017, defendant and his former attorney

testified at the evidentiary hearing. Their testimony varied

sharply regarding plea counsel's legal advice regarding use of the

sledgehammer as a deadly weapon.

At the time of the hearing, plea counsel was employed by the

Public Defender's Office and had been practicing criminal defense

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law for thirty-five years. He recalled discussing with defendant

"whether or not a jury would construe a sledgehammer to be a weapon

for purposes of the armed robbery statute." In particular, counsel

informed defendant the jury would determine "whether or not they

found proof beyond a reasonable doubt that [defendant] and his co-

defendants possessed the sledgehammer for more than just smashing

the jewelry cases." He testified further, "I'm sure that I told

him that it would have to be determined by the manner in which

[the sledgehammer] was used primarily and the perceptions of the

people who were the victims of the crime."

Plea counsel also testified about his discussion with

defendant regarding his complicity in the offense based on

the circumstances of the case where he went
in there with two other people, started
smashing . . . the display cases and people
were being dragged around the store by their
hair and screaming and things like that and
being locked in rooms, I thought that there
was a good chance that . . . the actions of
the other defendants would be imputed to him
since they all arrived in the car together and
fled together that they were acting together.

Conversely, defendant denied discussing accomplice liability

with his former attorney. Rather, he claimed "We didn't discuss

really anything, he told me that the hammer was a deadly weapon

and he told me it did not matter who had the hammer."

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 On January 4, 2017, the trial judge issued a written opinion

soundly recognizing defendant's claims lacked merit. Among other

things, the judge credited counsel's recollection that "he and the

defendant reviewed the discovery and the strength and weaknesses

of the defendant's case in detail [as] more credible than the

defendant's claim that he was given incorrect legal advice."

Our review of a PCR claim after a court has held an

evidentiary hearing "is necessarily deferential to [the] PCR

court's factual findings based on its review of live witness

testimony." State v. Nash, 212 N.J. 518, 540 (2013); see also

State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If

a court has conducted an evidentiary hearing on a petition for

PCR, we necessarily defer to the trial court's factual findings.").

Where an evidentiary hearing has been held, we should not disturb

"'the PCR court's findings that are supported by sufficient

credible evidence in the record.'" State v. Pierre, 223 N.J. 560,

576 (2015) (quoting Nash, 212 N.J. at 540). We review any legal

conclusions of the trial court de novo. Nash, 212 N.J. at 540-

41; State v. Harris, 181 N.J. 391, 419 (2004).

"[A] defendant asserting ineffective assistance of counsel

on PCR bears the burden of proving his or her right to relief by

a preponderance of the evidence." State v. Gaitan, 209 N.J. 339,

350 (2012). A defendant must prove counsel's performance was

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deficient; it must be demonstrated that counsel's handling of the

matter "fell below an objective standard of reasonableness" and

that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland

two-part test in New Jersey).

A defendant must also prove counsel's "deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice

is established by showing a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. Thus, petitioner must

establish that counsel's performance was deficient and petitioner

suffered prejudice in order to obtain a reversal of the challenged

conviction. Id. at 687; Fritz, 105 N.J. at 52.

Here, the testimony adduced at the evidentiary hearing belies

defendant's contention that plea counsel failed to render proper

advice. We find nothing in the record to support defendant's

assertion that counsel failed to advise him about "the State's

burden to prove the sledgehammer was used in a threatening and

menacing manner, not simply to break the display case." Further,

as the PCR judge observed, counsel had filed a motion to dismiss

7 A-3307-16T4
the indictment, which defendant knowingly withdrew when he entered

his guilty plea.

We see no reason to disturb the PCR court's factual and

credibility findings. Those findings are entitled to our

deference. State v. Robinson, 200 N.J. 1, 15 (2009).

Affirmed.

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